IF YOU ARE A VICTIM OF DISCRIMINATORY MOTIVATED HARASSMENT AT WORK, AND DON’T REPORT IT, YOU MAY BE BARRED FROM RECOVERY

If your employer has a widely disseminated anti-harassment policy and you are a victim of harassment on the job, you must follow the victim reporting mechanism or procedures in the policy because failure to do so may bar you from recovering damages for the harassment you were forced to endure. The New Jersey Supreme Court decision in Aguas v. State of New Jersey, 220 N.J. 494 (2015) is instructive on this point. Ilda Aguas worked as a corrections officer for the New Jersey Department of Corrections (DOC). The DOC had in place a widely disseminated written anti-harassment policy which required employees to report sexual harassment or other forms of discrimination in writing. Aguas claimed her supervisor and other officers were sexually harassing her. However, Aguas only reported the harassing conduct verbally, not in writing. Thereafter, Aguas filed a lawsuit against the DOC and her harassers alleging she was sexually harassed in violation of New Jersey’s Law Against Discrimination (LAD). Ilda Aguas’ lawsuit was ultimately dismissed because she failed to follow the DOC’s anti-harassment policy and its requirement that victims of harassment make their complaints in writing.

In its decision affirming the dismissal of Ms. Aguas’ lawsuit, the New Jersey Supreme Court found that when an employer has in place a well-publicized and reasonably effective policy designed to eliminate discriminatory harassment in the workplace, and an employee fails to comply with the policy, the employer may avoid liability for the harassment perpetrated by its supervisors or the victim’s co-workers. This is called the “Ellerth-Faragher Defense” which gets its name from two United Supreme Court decisions Faragher v. Boca Raton, 524 U.S. 775 (1998), and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998). Under the Ellerth-Faragher Defense an employer can avoid liability to a victim of harassment if no tangible job action was taken against the employee (such as a firing or demotion) and: (a) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Faragher, supra., 524 U.S. at 807; Ellerth, supra,, 524 U.S. at 765.

Many victims of work related harassment are reluctant to report it for fear of retaliation; this is especially true if the harasser is a supervisor. Nonetheless, the Aguas decision instructs that failure to report the harassment could bar the victim from being able to sue an employer to recover damages for any physical, mental or emotional harms caused by the harassment. However, if you are a victim of harassment and fear retaliation if you report the harassment, you should consider that the LAD makes it unlawful for an employer, “to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by this act.” N.J.S.A. 10:5-12(d). Simply put, if your employer retaliates against you for reporting the harassment, you can and should sue them under the LAD for having done so. Victims of harassment and retaliation must do whatever is necessary to protect their right to sue in court to hold their employer and the harasser(s) accountable for the damage and harm caused by their unlawful actions.

If you believe you have been the victim of unlawful harassment or retaliation in the workplace, please do not hesitate to speak with one of our attorneys at Mashel Law by calling (732) 536-6161 or filling out the contact form on this page for immediate help. Mashel Law, located in Marlboro, New Jersey, is dedicated to protecting the rights of employees.